232. But if neither can be produced, proof of the handwriting of one only is sufficient. Adam v. Kerr, 1 B. & P. 360.

Proof of private documents evidence of handwriting.] Where a party cannot sign his name, but makes his mark, that mark may be proved by a person who has seen him make the mark, and is acquainted with it. Per Tindal, C. J., hæsitanter, George v. Surry, Moo. & M. 516. Where a witness had seen the party execute a bail-bond, but had never seen him write his name on any other occasion, and stated that the signature to the bond produced, was like the handwriting which he saw subscribed, but that he had no belief on the subject, this was held to be evidence of the handwriting to go to the jury. Garrells v. Alexander, 4 Esp. 37. But it is otherwise where the witness has only seen the party write his name once, and then for the purpose of making the witness competent to give evidence in the suit. Stranger v. Searle, 1 Esp. 14. Where the witness stated that he had only seen the party upon one occasion sign his name to an instrument to which he was attesting witness, and that he was unable to form an opinion as to the handwriting, without inspecting that other instrument, his evidence was held inadmissible. Filliter v. Minchin, Mann. Index, 131. In another case, under similar circumstances, Dallas, J., allowed a witness to refresh his memory, by referring to the original document, which he had formerly seen signed. Burr v. Harper, Holt, N. P. C. 420. It is sufficient, if the witness has seen the party write his surname only. Lewis v. Sapio, Moo. & Mal. 39, overruling Powell v. Ford, 2 Stark. 164."

It is not essential to the proof of handwriting, that the witness should have seen the party write. There are various other modes in which he may become acquainted with the handwriting. (1) Thus where a witness for the defendant stated that he had never seen the person in question write, but that his name was subscribed to an affidavit which had been used by the plaintiff, and that he had examined that signature, so as to form an opinion which enabled him to say he [*209] believed the handwriting in question was genuine, this was held by Parke, J., to be sufficient. Smith v. Stainsbury, 5 C. & P. 196. So where letters are sent directed to a particular person, and on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person whose handwriting it purports to be. Per Lord Kenyon, Cary v. Pitt, Peake, Ev. App. 86. And in general, if a witness has received letters from the party in question, and has acted upon them, it is a sufficient ground for stating his belief as to the handwriting. Thorpe v. Giburne, 2 C. & P. 21. And the receipt

(1) Hammond's case, 2 Greenl. 33. Russell v. Coffin, 8 Pick. 143. As when the witness has received promissory notes which the party has paid. Johnson v. Deverne, 19 Johns. 134. See Sharp v. Sharp et al. 2 Leigh, 249. So the officer of a bank in the habit of paying the party's checks. Coffey's case, 4 Rogers's Rec. 52. A witness may testify from having seen the party write, from having carried on a correspondence with him, or from an acquaintance gained from having seen handwriting acknowledged or proved to be his. Page v. Hemans, 14 Maine, 478.

It must be shown that a witness who is called to prove the handwriting of a person, has had such means of knowledge as to furnish a reasonable presumption that he is qualified to form an opinion on the subject. Allen v. The State, 3 Humphreys, 367.

It is not necessary to give positive proof of handwriting, in order to submit the instrument to the jury. A qualified expression of belief that it is in his handwriting is sufficient. Watson v. Brewster, 1 Barr. 381.

Eng. Com. Law Reps. xxii. 371. . Id. iii. 147. * Id. xxii. 24. ■ Id. iii. 296. ▾ Id. xxiv. 275. * Id. xii. 8.

of letters, although the witness has never done any act upon them, has been held sufficient. Doe v. Wallinger, Mann. Index, 131.

In general, a document cannot be proved by comparing the handwriting with other handwriting of the same party, admitted to be genuine; and the reason is, that specimens might be unfairly selected, and calculated to serve the purposes of the party producing them, and therefore not exhibiting a just sample of the general character of handwriting.(1) See Burr v. Harper, Holt, 421. Thus an inspector of franks at the post office, who has never seen the party write, though perfectly acquainted with his handwriting on franks, has been rejected as a witness. Batchelor v. Honeywood, 2 Esp. 714.

But in the case of ancient documents, where it is impossible that the usual proof of handwriting can be given, the rule as to comparison of hands does not apply.(2) B. N. P. 236. Thus authentic ancient writings may be put into the hands of a witness, and he may be asked whether, upon a comparison of those, with the document in question, he believes the latter to be genuine. Doe v. Tarver, Ry. & Moo. N. P. C. 142; 7 East, 282.

The rule as to comparison of handwriting does not apply to the court or the jury, who may compare the two documents together, when they are properly in evidence, and from that comparison form a judgment upon the genuineness of the handwriting.(3) Griffiths v. Williams, 1 Cr. & J. 47; Solita v. Yarrow, 1 Moo. & R. 133. But the document with which the comparison is made must be one already in evidence in the case, and not produced merely for the purposes of the comparison. Thus, where upon an indictment for sending a threatening letter, in order to prove the handwriting to it, it was proposed to put in a document un

Hutchins's case,

(1) In criminal cases, United States v. Craig, 4 Wash. C. C. Rep. 729. 4 Rogers's Rec. 119. Commonwealth v. Smith, 6 Serg. & Rawle, 571. Penna. v. M'Kee, Addison, 33, 35.

In civil cases, Jackson v. Phillips, 9 Cowen, 94. Root's adm. v. Rile's adm. 1 Leigh, 216. Martin v. Taylor, 1 Wash. C. C. Rep. 1. Pope v. Askew, 1 Iredell's N. C. Law Rep. 16.

It is admissible, however, where it goes in corroboration of other evidence. M'Corkle v. Binns, 5 Binn. 349. Farmers' Bank v. Whitehill, 10 Serg. & Rawle, 110. Bank of Penna. v. Jacobs's adm. 1 Penna. Rep. 161. Boyd's adm. v. Wilson, Id. 211. Myers v. Toscan, 3 N. Hamp. 47. Commonwealth v. Smith, 6 Serg. & Rawle, 571. Penna. v. M'Kee, Addis. 33, 35. Callan v. Gaylord, 3 Watts, 321. Moody v. Rowell, 17 Pick. 490. Richardson v. Newcomb, 21 Pick. 315. It will not invalidate the positive testimony of an unimpeached witness. Bell v. Norwood, 7 Louisiana, 95. So comparison of seals is not sufficient. Chew v. Keck et al. 4 Rawle, 163.

Mere unaided comparison of hands is not in general admissible. But after evidence has been given in support of a writing, it may be corroborated by comparing the writing in question with a writing concerning which there is no doubt. Baker v. Haines, 6 Whart. 284.

A witness having no previous knowledge of the handwriting of a party, cannot be permitted to testify as to its authenticity from a mere comparison of hands in court. Wilson v. Kirkland, 5 Hill, 182.

Woodward et al

(2) Strother v. Lucas, 6 Peters, 763. Thomas v. Herlacker, 1 Dall. 14. v. Spiller, 1 Dana, 180. To prove handwriting, in general, a witness must know it by having seen the person write, or having corresponded with him; but in the case of ancient deeds or papers so old that no living witness can be produced, the genuineness of handwriting may be proved by an expert by comparison with papers where genuineness is acknowledged. West v. State, 2 Zabriskie, 212.

When handwriting is to be proved by comparison, the standard used for the purpose must be genuine and original writing, and must first be established by clear and undoubted proof. Impressions of writings taken by means of a press, and duplicates made by a copying machine are not original, and cannot be used as standards of comparison. Commonwealth v. Eastman, 1 Cushing, 189.

(3) Contra, Hutchins's case, 4 Rogers's Rec. 119. Eng. Com. Law Reps. iii. 147.

Id. xxi. 400.

.

doubtedly written by the prisoner, but unconnected with the charge, in order that the jury might compare the writing with that of the letter, Bolland, B., after considering Griffiths v. Williams, rejected the evidence, observing, that to say that a party might select and put in evidence particular letters, bearing a certain degree of resemblance or dissimilarity to the writing in question, was a different thing from allowing a jury to form a conclusion from inspecting a document put in for another purpose, and therefore free from the suspicion of having been so selected. Morgan's case, 1 Moo. & Rob. 134. (n.) See also Bromage v. Rice, 7 C. & P. 548; Doe v. Newton, 5 A. & E. 514, 534;a Griffiths v. Ivery, 11 A. & E. 322; Hughes v. Rogers, 8 M. & W. 123, and Younge v. Honner, 1 C. & K. 751.

Where a party to a deed directs another person to write his name for him, and he [*210] does so, that is a good execution by the party himself. *R. v. Longnor, 4 B. & Ad. 647. In such case the subscription of the name by the agent, and his authority to subscribe it, must be proved. (1)

Whether the evidence of persons skilled in detecting forgeries is admissible, in order to prove a particular handwriting is not genuine, is a point not well settled. Such evidence was admitted in one case. Goodtitle v. Braham, 4 T. R. 497. But in a subsequent case, Lord Kenyon, who had presided in the case of Goodtitle v. Braham, rejected similar evidence. Cary v. Pitt, Peake Ev. App. lxxxv. It was admitted again by Hotham, B. (Cator's case, 4 Esp. 117;) and again rejected in Gurney v. Langlands, 5 B. & A. 330. Upon the point coming before the court of K. B., in the last cited case, they refused to disturb the verdict, on the ground of the evidence having been rejected. In a recent case the court of K. B. was equally divided on the question whether, after the witness had sworn to the genuineness of his signature, another witness (a bank inspector) could be called to prove that in his judgment the signature was not genuine, such judgment being solely found on a comparison pending the trial with other signatures admitted to be those of the attesting witness. (2) Doe v. Suckermore, 4 A. & E. 703; 2 N. & P. 16.

Proof of execution, when dispensed with.] When a deed is thirty years old it proves itself, and no evidence of its execution is necessary. B. N. P. 255; Doe v. Burdett, 4 A. & E. 19. And so with regard to a steward's books of account if they come from the proper custody; Wynne v. Tyrwhitt, 4 B. & A. 376; letters; Beer v. Ward, Phill. Ev. 652, 8th ed.; a will produced from the ecclesiastical court; Doe v. Lloyd, Peake Ev. App. 91; a bond; Chelsea W. W. v. Cooper, 1 Esp. 275; and other old writings; Fry v. Wood, Selw. N. P. 517,(n.) Even if it appear that the attesting witness is alive, and capable of being produced, it is unnecessary to call him where the deed is thirty years old. Doe v. Woolley, 8 B. & C. 22. If there is any rasure or interlineation in an old deed, it ought to be proved in the regular manner by the witness, if living, or by proof of his handwriting, and that of the party, if dead. B. N. P. 255. But perhaps this is in strictness only necessary where the alteration on the face of it is material or sus

(1) But proof of his handwriting is not enough. He must be produced himself. M'Kee v. Meyer's exr. Addis. 32.

(2) An expert who speaks from skill is not competent to establish a forgery. Bank of Penna. v. Jacobs, 1 Penna. Rep. 161. Lodge v. Phipher, 11 Serg. & Rawle, 383.

Contra, Hess v. The State, 5 Ohio, 6. State v. Candler, 3 Hawks, 393. Moody v. Rowell, 17 Pick. 490.

Eng. Com. Law Reps. xxxii. 425.

Id. xxxi. 882.

Id. xxxix. 104. • Id. xlvii. 751. Id. xxiv. 131. • Id. vii. 118. Id. xxxi. 406. Id. xxxi. 18. Id. vi. 452. Id. xv. 159.

picious. Where an old deed is offered in evidence without proof of execution, some account ought to be given of its custody; B. N. P. 255; or it should be shown that possession has accompanied it. Gilb. Ev. 97.(3) Where a party producing a deed upon a notice to produce, claims a beneficial interest under it, the party calling for the deed need not prove its execution. Pearce v. Hooper, 3 Taunt. 62. As where assignees produce the assignment of the bankrupt's effects. Orr v. Morice, 3 B. & B. 139. See also Carr v. Burdiss, 5 Tyrwh. 136; 1 C., M. & R. 782; Doe v. Wainwright, 5 A. & E. 520.*

So in an action against the vendor of an estate, to recover a deposit in a contract for the purchase, if the defendant on notice produces the contract; Lord Tenterden, C. J., held that the plaintiff need not prove its execution. Bradshaw v. Bennett, 1 Moo. & R. 143.

So where in an action by a pitman against the owners of a colliery, for wages due to him under an agreement usually called a pit bond, the defendants produced the agreement upon notice; Cresswell, J., *held that it was unne- [ *211 ] cessary for the plaintiff to call the attesting witness. Bell v. Chaytor, Durham Summ. Ass. 1843, MS.; 1 Carr. & K. 162.1

Where, however, a defendant, to prove that he had been in partnership with the plaintiffs, offered in evidence a written contract purporting to be made by the plaintiffs and the defendant as partners with K. a builder, for work to be done by K. upon the premises where the plaintiffs carried on the business in which the defendant alleged himself to have been a partner, and the document was in the plaintiff's custody, produced by them on notice, it was held that the contract was not admissible as an instrument under which the plaintiffs claimed an interest without proof of the execution. Collins v. Bayntum, 1 Q. B. 117.TM

But where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner. Gordon v. Secretan, 8 East, 548; Doe v. Cleveland, 9 B. & C. 864. See further, Rosc. N. P. Ev. 93, 4th ed. 94, 5th ed.

Stamps.] In general, in criminal as well as in civil cases, a document, which by law is required to be stamped, cannot be given in evidence without a stamp, unless, as in the cases after mentioned, the instrument itself is the subject-matter of the offence. Thus, where upon an indictment for embezzlement, in order to prove the receipt of the money, evidence was tendered of an unstamped receipt for it, given by the prisoner, it was rejected by Bayley, J., Hall's case, 3 Stark. N. P. C. 67. Upon an indictment for setting fire to a house, with intent to defraud an insurance company, in order to prove the insurance, a policy not properly stamped, was given in evidence, and the prisoner was convicted; on a case reserved, the conviction was held wrong, by six judges against five. Gibson's case, Russ. & Ry. C. C. 138; 2 Leach, 1007; 1 Taunt. 98, S. C.

But where the unstamped instrument is offered in evidence, not for the purpose of proving that, which, had it been genuine, it would have proved, but merely as evidence against the prisoner, of the commission of the offence with which he is charged, it is then admissible without a stamp. The prisoner was indicted for

(3) An agreement or deed under which land has been occupied and claimed for upwards of thirty years, may be given in evidence without proof of its execution by the subscribing witnesses. Zeigler v. Houtz, 1 Watts & Serg. 533. ¡Eng. Com. Law Reps. vii. 382. Id. xxxi. 385. " Id. xvii. 512.

'Id. xlvii. 162.

m

" Id. xli. 463.

• Id. xiv. 165.

forging a bill of exchange, and it was objected for him, that there was no stamp upon it, and that it could not be received in evidence; but Buller, J., said that the stamp act was merely a revenue law, and did not purport in any way to alter the law of forgery, and that the false instrument had the semblance of a bill of exchange, and had been negotiated by the prisoner as such, and overruled the objection. Upon a case reserved, the judges were of opinion that the prisoner was properly convicted. Hawkesworth's case, 2 East, P. C. 955; 1 Leach, 257, stated post. A similar objection having been taken in another case, most of the judges maintained the principle in Hawkeswood's case to be well founded. Morton's case, 2 East, P. C. 955, stated post. See also Reculist's case, 2 East, P. C. 956; 2 Leach, 703, S. C. Teague's case, 2 East, P. C. 979. If the matter be duly considered, says Mr. East, the words of the stamp acts can only be applicable to true instruments, for a forged instrument, when discovered to be such, can never be made available, though stamped. The acts, therefore, can only be understood as requiring stamps on such instruments as were available without a stamp before [*212] those acts passed, and which would be available afterwards, *with a stamp. 2 East, P. C. 956. See also Williams v. Gerry, 10 M. & W. 296.

Where the unstamped document is produced in evidence, not as forming the subject-matter of the offence, but for a collateral purpose (not being its proper object), it is admissible. Of this rule there are many instances in civil actions. See Rosc. Dig. Ev. N. P. 155, 4th and 5th ed. And upon an indictment under the 7 Geo. 3, c. 50, s. 2, for stealing a letter out of a post-office, a check contained in the letter, though drawn on unstamped paper, was received in evidence, for the purpose of proving the fact of the letter having been stolen. Pooley's case, 2 Leach, 900; 1 East, P. C. Add. xvii. ; 3 Bos. & Pul. 315, S. C.

The rule upon this subject seems to be that where the indictment is founded upon a written instrument, and the instrument itself is the crime, it is receivable in evidence without a stamp; but where the indictment is for an offence distinct from the instrument, which is only introduced collaterally, it cannot be received unless it be properly stamped. See per Lord Tenterden, C. J., Smyth's case, 5 C. & P. 204; also Coppock v. Barnes, 4 M. & W. 361.

P Eng. Com. Law Reps. xxiv. 281.